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OBSERVATIONS 


ON 


THE  ORIGIN  OF  THE 


TRIAL  BY  COUNCIL  OF  WAR, 


OR    THE    PRESENT 


COURT-MARTIAL. 


BY 

G.  NORMAN  LIBBER, 

I 
JUDGE   ADVOCATE, 

U.    S.   ARMY. 


NEW  YORK: 
1876. 


ORIGIN  OF 


THE  TRIAL  BY 


COUNCIL  OF  WAR; 


During  the  second  quarter  of  the  seventeenth  century  the 
English  system  of  administering  military  law  underwent  a  radi- 
cal change.  Since  the  Conquest  the  only  legally  recognized 
military  court  had  been  the  Court  of  Chivalry,  or  Marshal's 
Court,  presided  over  by  the  High  Constable,  who  was  the  Com- 
mander-in- Chief,  and  the  Marshal,  who,  from  being  Superinten- 
dent of  the  Stables,  or  Chief  of  Equerries,  had  risen  to  the 
second  place  in  the  Army.  The  office  of  High  Constable  was 
hereditary  in  certain  families  until  the  reign  of  Henry  VIII. 

*  NOTE. — When  the  old  Court  of  Chivalry,  or  Marshal's  Court, 
went  into  disuse,  the  tribunal  which  took  its  place  was  called  the 
Council  of  War,  or  Court  Martial.  The  first  of  these  two  names, 
however,  soon  gave  way  to  the  latter,  which,  in  England,  is  now  ap- 
plied to  all  courts  for  the  enforcement  of  military,  as  well  as  martial, 
law.  In  this  country  we  call  the  martial  law  courts  Military  Com- 
missions. It  is,  however,  a  designation  of  recent  origin.  When  Gene- 
ral Scott,  in  October,  1846,  drew  up  his  "Projet"  for  martial  law 
in  Mexico,  he  fixed  upon  the  term  "  Council  of  War'7  as  an  appropri- 
ate one  for  these  tribunals,  but  changed  it  to  "  Military  Commissions  " 
in  his  celebrated  order  of  September  17th,  1847,  issued  at  the  city 
of  Mexico,  and  the  name  thus  affixed  to  the  court  has,  with  us,  be- 
come its  permanent  designation 

M184557 


It  had  by  that  time  grown  to  such  a  dangerous  height  of  au- 
thority, that  the  king  abolished  it  as  an  hereditary  office ;  nor 
was  it  afterwards  revived  except  for  the  special  purpose  of  a 
temporary  exercise  of  its  judicial  powers.  The  last  instance  of 
this  kind  occured  in  1631,  upon  an  appeal  of  treason  brought 
by  Donald  Lord  Eae  against  David  Ramsay,  when  Robert,  Earl 
of  Lindsay,  was  appointed  High  Constable,  and  a  Court  of  Chiv- 
alry constituted,  consisting  of  the  Constable,  the  Earl  Marshal, 
and  ten  others  of  the  officers  of  state  and  principal  nobility, 
to  "hear,  decide,  and  bring  to  final  sentence  this  cause,  and  do 
therein  according  to  the  law  and  custom  of  armies,  and  the 
usage  of  the  Military  Court  of  England." 

The  difference  between  the  parties  in  this  case  was  adjudged 
to  be  settled  by  a  public  duel,  but  the  judgment,  at  first  ap- 
proved by  the  King,  was  afterwards  set  aside  as  a  relic  of  bar- 
barism. 

The  presence  of  the  High  Constable  had  not  always,  how- 
ever, been  regarded  as  necessary  to  the  legal  constitution  of  the 
court.  For  a  long  time  it  was  held  by  the  Marshal  alone,  and 
the  legality  of  his  exercise  of  judicial  powers  without  the  Con- 
stable, during  a  vacancy  in  that  office,  was  sustained  in  the  reign 
of  James  I,  by  the  decision  of  the  Lord  Keeper,  the  Master  of 
the  Rolls,  and  other  lords  of  the  Privy  Council.  But  this  de- 
cision was  reversed  in  the  succeeding  reign  by  the  Lord  Keeper 
and  judges  of  the  King's  Bench,  and  the  court  in  Ramsay's 
case  was  formed  agreeably  to  the  latter  decision. 

At  the  time  of  Richard  II,  the  Marshal's  Court  had  usurped 
jurisdiction  to  such  an  extent  that  it  became  necessary  to  re- 
strain it  by  statute,  and  its  legal  jurisdiction  was  accordingly 
defined  as  follows: — 

"  To  the  Constable  it  pertain eth  to  have  cognizance  of  con- 
tracts touching  deeds  of  arms  and  of  war  out  of  the  realm,  and 
also  of  things  that  touch  war  within  the  realm,  which  cannot 
be  determined  nor  discussed  by  the  common  law,  with  other 
usages  and  customs,  to  the  same  matter  pertaining,  which  other 
Constables  heretofore  have  duly  and  reasonably  used  in  their 
time." 


Yet  the  commission  of  High  Constable  granted  to  the  Earl 
of  Rivers,  more  than  a  century  later,  shows  that  the  law  was 
not  respected.  The  criminal  jurisdiction  of  the  court  appears 
to  have  then  again  extended  to  a  great  variety  of  undefined 
offences,  and  to  have  been  exercised  by  the  High  Constable 
without  any  regulated  form  of  trial,  and  without  restriction  as 
to  punishment,  no  appeal  to  the  king  even  being  allowed  against 
his  decrees. 

The  most  flagrant  of  these  abuses  were  subsequently  correct- 
ed, but  the  jurisdiction  of  the  court  was  never  confined  within 
the  constitutional  limits  as  fixed  by  the  statute  of  13th  Richard 
II. 

Rushworth  gives,  in  his  Historical  Collections,  a  few  cases 
which  show  to  what  illegal  purposes  the  court  was  perverted 
during  the  last  years  of  its  existence.  "Many,"  he  says,  "were 
the  complaints  by  way  of  Libel  (the  court  proceeding  according 
to  the  civil  law)  against  others,  for  giving  a  gentleman  words 
tending  to  the  defamation  of  a  family  well  descended. 

"As  for  instance,  one  Brown  set  forth  in  libel  his  descent; 
that  another  person,  in  way  of  defamation,  said  he  was  no  gentle- 
man, but  descended  from  Brown,  the  great  Pudding-eater  in 
Kent;  but  it  appearing  he  was  not  so  descended,  but  from  an 
antient  family,  he  that  spake  the  words  underwent  the  sentence 
of  the  court,  and  was  decreed  to  give  satisfaction  by  the  party 
complaining. 

"  In  another  case,  a  citizen  of  London  was  complained  of, 
who  going  to  a  gentleman,  well  descended,  for  some  money  that 
was  due  unto  him,  the  gentleman  not  only  refused  to  pay  him 
the  money,  but  gave  him  hard  words ;  then,  said  the  citizen, 
surely  you  are  no  gentleman  that  would  not  pay  your  debts, 
with  some  other  reflecting  language,  and  the  citizen  underwent 
the  censure  of  the  court." 

In  1640  the  Commons  appointed  a  committee  "to  consider 
of  the  proceedings  and  power  of  the  High  Constable  and  Earl 
Marshal's  Court,  and  to  report  the  state  of  the  whole  matter  to 
the  House." 


The  Committee  reported:  That  the  court  had  no  jurisdiction 
to  hold  plea  of  words ;  that  the  Earl  Marshal  could  make  no 
court  without  the  Constable  ;  and  that  the  Earl-Marshal's  Court 
was  a  grievance. 

The  House  confirmed  these  opinions  by  several  votes,  and 
gave  further  power  to  the  committee : — 

"  1.  That  they  do  consider  who  they  are  that  are  guilty  of 
this  grievance  by  the  Earl-Marshal's  Court. 

"2.  To  consider  of  the  nature  of  the  crime  which  they  are 
guilty  of. 

"  3.  That  they  prepare  and  draw  up  a  charge,  to  be  trans- 
mitted to  the  Lords,  against  those  who  have  thus,  to  the  griev- 
ance of  the  subject,  usurped  this  jurisdiction." 

The  Court  of  Chivalry  was  never  formally  abolished,  but  its 
usurpations  became  so  offensive  to  the  people  that  it  gradually 
and  quietly  passed  out  of  existence.  Its  civil  jurisdiction  was 
remitted  to  civil  tribunals,  and  for  the  exercise  of  its  military 
jurisdiction  a  system  was  established  which,  confirmed  by  statu- 
tary  law,  is  in  force  to-day. 

Before  the  passage  of  the  first  Mutiny  act  in  1689,  the  law 
of  England  did  not,  in  point  of  fact,  recognize  any  separate 
code  for  the  government  of  the  army  at  home  in  time  of  peace. 
The  reason  is  obvious.  It  was  a  natural  consequence  of  a  long 
series  of  usurpations  of  military  power,  and  the  growing  fear 
of  a  standing  army,  expressed  in  the  Bill  of  Rights  by  the  an- 
nouncement of  the  constitutional  principle  that  a  standing  army 
in  time  of  peace,  without  the  consent  of  Parliament,  is  against 
the  law.  Until  the  Restoration  there  was  no  permanent  mili- 
tary peace  establishment  in  England.  The  "hus-carls  "  of  the 
Danish  Kings  of  England  have  been  spoken  of  as  the  founda- 
tion of  the  English  standing  army.  They  constituted  a  per- 
manent body  of  household  troops,  it  is  true,  and  were  not  dis- 
missed with  the  rest  of  the  army  at  the  end  of  a  war,  but  they 
did  not  constitute  a  legal  peace  establishment,  nor  the  nucleus 
of  a  standing  army.  This  was  the  legitimate  off-spring  of  the 
mutiny  act  alone.  Soon  after  his  accession,  Charles  II.  begun, 
indeed,  to  form  a  permanent  force,  but  it  was  so  little  recognized 


by  Parliament,  that  he  was  compelled  to  pay  it  out  of  his  own 
revenues.  "  The  discipline  "  says  Macaulay,  "  was  lax ;  indeed 
it  could  not  be  otherwise.  The  common  law  of  England  knew 
nothing  of  courts-martial,  and  made  no  distinction,  in  time  of 
peace,  between  a  soldier  and  any  other  subject." 

Armies  had  before  this  been  raised  for  service  abroad,  or  for 
war  within  the  realm,  and,  when  thus  engaged,  were  subject  to 
articles  of  war  issued  by  the  sovereign  by  virtue  of  his  preroga- 
tive. But  the  prerogative  did  not  extend  to  putting  forth  arti-  • 
cles  for  the  government  of  the  army  at  home  in  time  of  peace, 
and  so  jealous  were  the  people  of  any  encroachment  upon  the 
civil  power,  that  no  government  dared  even  to  ask  for  a  bill 
establishing  a  military  code. 

James  II.  illegally  increased  the  army  until  it  numbered 
about  40,000  men,  but  he  was  not  vested  by  law  with  the  power 
of  controlling  this  force.  He  did,  in  fact,  issue  articles  of  war 
for  the  purpose,  but  it  was  an  illegal  usurpation  of  power.  He 
claimed  that  he  could,  by  virtue  of  his  prerogative,  and  without 
an  act  of  Parliament,  enforce  "  martial  law  "  against  military 
men  at  all  times,  but  the  question  was  decided  against  him  : 
first  by  Sir  John  Holt,  then  Recorder  of  London,  and  after- 
wards by  Lord  Chief  Justice  Herbert,  who  decided  that, 
without  an  act  of  Parliament,  all  laws  were  equally  applicable 
to  all  his  majesty's  subjects,  whether  wearing  red  coats  or  grey. 
By  law,  therefore,  the  soldier  was  at  this  time  subject  in  every 
respect  to  the  same  law  as  other  subjects.  Says  Macaulay, 
"  When  war  was  actually  raging  in  the  kingdom,  a  mutineer  or 
deserter  might  be  tried  by  a  military  tribunal  and  executed  by 
the  provost-marshal.  But  there  was  now  profound  peace.  The 
common  law  of  England  having  sprung  up  in  an  age  when  all 
men  bore  arms  occasionally,  and  none  constantly,  recognized 
no  distinction  in  time  of  peace  between  a  soldier  and  any  other 
subject."  It  follows  that  at  law  there  was  no  distinction  be- 
tween the  soldier  and  his  officer.  If  the  soldier  swore  at  his 
commander,  he  incurred  no  penalty  save  a  fine  for  his  oath ;  if 
he  struck  him,  he  committed  no  offence  save  assault  and  battery. 


6 

Such  was  the  law  at  the  time  of  the  passage  of  the  first  mutiny 
act.  The  necessity  of  a  change  in  the  law  was  then  recognized 
— the  mutiny  of  the  "  Royal  Scotts  "  giving  a  practical  proof 
of  the  necessity,  and  facilitating  the  change.  The  new  law  was 
very  imperfect.  Mutiny,  sedition  and  desertion  were  the  only 
offences  made  punishable  by  military  law,  and  the  omission  was 
not  supplemented  by  any  authorization  of  the  sovereign  to  put 
forth  articles  which  should  be  in  force  within  the  realm  in  time 
.  of  peace,  nor  was  this  done  until  the  year  1717.  By  this  law, 
however  the  court-martial  was  first  legally  established  as  the 
regular  tribunal  for  the  trial  of  military  offences  in  England,  in 
time  of  peace.  The  court  had,  indeed,  already  become  a  feature 
of  English  history,  and  of  English  law,  so  far  as  it  was  resorted 
to  in  time  of  war,  or  beyond  the  realm.  To  this  extent  its 
creation  was,  no  doubt,  within  the  limits  of  the  royal  prerogative. 
It  had  been  used,  also,  for  the  trial  of  military  offenders  in  time 
of  peace,  within  the  realm ;  but  it  had  no  legal  existence  for 
this  purpose  before  the  date  of  the  first  Mutiny  act  of  William 
and  Mary. 

The  articles  of  war  issued  by  Charles  I.  in  1629,  still  con- 
fided the  administration  of  military  justice  to  the  Marshal's 
court.  In  1639  we  meet  with  the  first  indication  of  a  depar- 
ture from  the  old  system  Articles  were  then  promulgated  by 
the  Earl  of  Arundel,  commander-in-chief  of  the  Northern 
Army,  under  authority  conferred  upon  him  by  his  commission, 
to  hear,  examine  and  debate,  himself  or  by  deputies,  all  causes, 
both  criminal  and  civil,  arising  within  the  army.  By  these 
articles,  which  are  regarded  as  the  foundation  of  our  present 
military  code,  the  administration  of  justice  was  entrusted  to 
"the  Councell  of  Warre"  or  "  Court  Marshall,"  and  the  Advo- 
cate of  the  Army — subject,  however,  to  the  "Lord  Generall's" 
exercise  of  the  power  vested  in  him  by  his  commission.  Arun- 
del was  also  Earl  Marshal  of  England,  but  it  was  as  Lord  Gene- 
ral— a  position  corresponding  to  the  old  office  of  High  Con- 
stable— and  not  as  Earl  Marshal,  that  he  assumed  to  exercise 
and  delegate  the  power. 


The  articles  of  the  Earl  of  Northumberland,  which  bear  date 
1640,  also  recognized  the  "Councell  of  Warre."  "  All  contro- 
versies between  souldiers  and  their  captains,  and  all  others,1' 
said  these  articles,  '-shall  be  summarily  heard  and  determined  by 
the  Councell  of  Warre,  except  the  weightinesse  of  the  cause 
require  further  deliberation." 

Essex  adopted  this  provision,  word  for  word,  in  the  articles 
which  he  issued  in  1642,  under  an  ordinance  of  Parliament, 
and  which  are  sometimes  spoken  of  as  the  "Parliamentary 
Articles."  So,  the  articles  and  ordinances  published  to  the 
army  of  Scotland  in  1648,  recognized  the  "Court  of  War"  or 
"  Martial  Court"  as  the  regular  tribunal  for  the  trial  of  military 
offences. 

Of  this  thus  newly  established  court  Grose  (Mil.  Antiq.,  vol. 
II.  p.  54,)  says :  "  As  the  commissions  of  most  of  the  command- 
ers-in-chief  contained  a  clause  authorizing  them  to  enact  ordi- 
nances for  the  government  of  the  army  under  their  command, 
and  to  sit  in  judgment  themselves,  or  to  appoint  deputies  for 
that  purpose,  it  seems  in  some  degree  imperceptibly  to  have  en- 
croached on  the  independency  of  the  Marshal's  Court,  and  at 
length  to  have  taken  a  new  form  under  the  denomination  of  the 
Court  or  Council  of  War,  which  sat  at  stated  times,  or  was  or- 
dered by  the  commander-in-chief,  and  at  which  officers  of  a 
certain  rank,  apparently  not  under  that  of  a  colonel,  had  a  right 
to  sit  as  assessors  or  members,  and,  instead  of  the  Marshal,  we 
hear  of  an  officer  styled  president  of  the  higher  court  of  war, 
who,  on  certain  occasions,  claimed  the  privilege  of  a  double  vote." 

From  a  manuscript  dated  1649,  entitled,  "A  Brief  Treatist 
of  Warr,  &c.,"  Grose  extracts  the  following  description  of  the 
duties  of  the  president  of  the  court: — 

•'The  next  in  order  I  conceive  to  be  the  president  of  the 
high  court  of  war,  whose  place  requireth  him  to  be  a  person  of 
honour,  integretie,  of  sound  judgment,  of  ripe  knowledge  in  civil 
and  military  laws,  before  whom  all  matters,  civil  and  criminal, 
that  have  relation  to  the  army  are  to  be  tryed,  and,  therefore, 
he  ought  to  be  assisted  with  a  learned  fiscal  or  judge  advocate, 
as  also  with  a  well  experienced  auditor,  to  audit  and  keep  regi- 


8 

ster  of  all  cases  and  matters  that  shall  be  brought  before  the 
court  of  war. 

"His  office  is  to  assemble  the  court  of  war  as  often  as  the 
general  shall  please  for  to  appoint  him,  and  in  the  interims  he 
is  to  prepare  all  busyness  and  causes,  so  that  the  court  of  war 
may  have  a  clear  and  just  information  of  all  things;  and  when 
that  any  busyness  shall  come  into  a  final  sentence,  he  shall  have 
the  priviledge  of  a  double  voice,  because  he  represents  the  gene- 
ral's person." 

During  the  reign  of  Charles  II.  the  trial  by  court-martial  was 
further  developed.  By  the  code  of  1666 — the  second  of  that 
reign — the  administration  of  military  justice  was,  for  the  first 
time,  divided  between  "general,"  "regimental,"  and  "detach- 
ment" courts.  The  general  court-martial  was  appointed  by  the 
commander-in-chief,  consisted  of  thirteen  officers,  and  had  juris- 
diction of  offences  punishable  with  life  and  limb.  Regimental 
courts-martial  were  for  the  trial  of  minor  offences  committed  by 
soldiers.  Detachment  courts-martial  had  the  same  powers  as 
the  regimental  courts,  but  were  appointed  by  the  governors  of 
garrisons,  who,  for  this  purpose,  were  authorized  to  call  in  of- 
ficers from  neighbouring  garrisons  to  make  up  the  detail. 

By  these  articles  no  field  officer  was  to  be  tried  by  any  officer 
under  the  degree  of  captain.  This  distinction  as  to  rank  was 
afterwards  still  further  extended,  for,  according  to  the  directions 
issued  by  James  II.  in  1686,  the  lieutenants,  sub-lieutenants 
and  ensigns  were  not  in  any  case  eligible  except  when  there  was 
not  a  sufficient  number  of  captains  available.  "  The  lieutenants, 
sub-lieutenants  and  ensigns  have  right  to  enter  into  the  room 
where  the  councel  of  war  (or  court-martial)  is  held,"  say  these 
directions,  "but  they  are  to  stand  at  the  captains'  backs  with 
their  hats  off,  and  have  no  vote."  According  to  the  first  mutiny 
act,  also,  field  officers  could  only  be  tried  by  field  officers,  and 
no  member  of  any  court  could  be  under  the  degree  of  captain. 

The  system  thus  established  in  England  is  still  in  force  there, 
and  has  come,  to  us  as  part  of  our  inheritance  from  the  mother 
country.  In  both  countries  the  court-martial  is  the  only  legal 
tribunal  for  the  trial  and  punishment  of  offences  arising  under 


the  law  military.  This  system  has  heretofore  been  regarded  as 
one  of  spontaneous  growth  in  England,  yet  there  are  circum- 
stances which  strongly  indicate,  if  they  do  not  conclusively 
prove,  its  continental  origin. 

At  the  time  when  changes  in  the  law  military  began  to  be 
introduced  in  England,  Europe  was  involved  in  the  Thirty  Years' 
War.  That  war  had  fixed  the  eyes  of  the  world  upon  Gus- 
tavus  Adolphus  as  the  greatest  military  organizer  of  the  age. 
Directly  or  indirectly  his  influence  was  perceptible  far  beyond 
his  immediate  sphere  of  action.  His  military  arrangements, 
including  the  regulations  by  which  he  governed  his  troops,  were 
widely  studied  and  imitated.  In  England  his  articles  of  war 
were  translated  and  printed,  as  a  pattern  code,  in  Ward's  "  Anim- 
adversions of  Warre."  This  work  was  published  in  1639;* 
the  articles  had  been  promulgated  to  the  Swedish  army  in  1620. 
They  contained  the  following  provisions  for  the  administration 
of  justice : — 

"  ARTICLE  135.  Very  requisite  it  is,  that  good  justice  be 
holden  amongst  our  souldiers,  as  well  as  amongst  other  our  sub- 
jects. 

"  136.  For  the  same  reason  was  a  King  ordained  by  God  to 
be  the  Sovereign  Judge  in  the  field  as  well  as  at  home. 

"137.  Now  therefore  in  respect  of  many  occasions  which 
may  fall  out,  his  single  judgement  alone  may  be  too  weak  to 
discerne  every  particular  circumstance  ;  therefore  it  is  requisite 
that  in  the  Leaguer,  as  well  as  otherwhere,  there  be  some  court 
of  justice  erected  for  the  deciding  of  all  controversies;  and  to 
be  carefull,  in  like  manner,  that  our  Articles  of  Warre  be  of  all 
persons  observed  and  obeyed  so  farre  forth  as  is  possible. 

"  138.  We  ordaine,  therefore,  that  there  be  two  Courts  in 
our  Leaguer,  a  high  Court  and  a  lower  Court. 

"139.  The  lower  court  shall  be  amongst  the  Regiments, 
both  of  Horse  and  Foot,  whereof  every  Regiment  shall  have 
one  among  themselves. 

"140.  In  the  Horse  Regiments  the  Colonel  shall  be  Presi- 
dent, and  in  his  absence  the  Captaine  of  our  own  Life-guards  > 

*  A  copy  of  it  is  in  the  possession  of  General  J.  W.  De  Peyster, 
who  has  kindly  permitted  the  writer  to  make  use  of  it. 


10 

with  them  are  three  Captains  to  be  joyned,  three  Lieutenants, 
three  Cornets,  and  three  Quarter-masters,  that  so  together  with 
the  President  they  may  be  to  the  number  of  thirteen  at  the 
least. 

"141.  In  a  liegiinent  of  Foot  the  Colonell  also  shall  be 
President,  and  his  Lieutenant-colonell  in  his  absence ;  with  them 
are  two  Captains  to  be  joyned,  two  Lieutenants,  two  Ensignes, 
four  Sergeants  and  two  Quarter-masters ;  that  together  with  the 
President  they  may  be  thirteene  in  number  also. 

"142.  In  our  highest  Marshall  Court  shall  our  Generalls  be 
President ;  in  his  absence  our  Field  Marshall ;  when  our  Gene- 
rall  is  present,  his  associates  shall  be  our  Field  Marshall  first, 
next  him  our  Generall  of  the  Ordnance,  Sergeant-Major  Gene- 
rail,  Generall  of  the  Horse,  Quarter-master-Generall ;  next  to 
them  shall  sit  our  Muster-Masters  and  all  our  Colonells,  and  in 
their  absence  their  Lieutenant-Colonells,  and  these  shall  sit  to- 
gether when  there  is  any  matter  of  great  importance  in  cori- 
troversie. 

"143.  Whensoever  this  highest  Court  is  to  be  holden,  they 
shall  observe  this  order :  Our  great  Generall,  as  President,  shall 
sit  alone  at  the  head  of  the  table,  on  his  right  hand  our  Field 
Marshall,  on  his  left  hand  the  Generall  of  the  Ordnance,  on  the 
right  hand  next  our  Sergeant-Major  Generall,  on  the  left  hand 
againe  the  Generall  of  the  Horse,  and  then  the  Quarter-master 
Generall  on  the  one  hand  and  the  Muster-Master  Generall  on 
the  other ;  after  them  shall  every  Colonell  sit  according  to  his 
place,  as  here  folio wes :  first  the  Colonell  of  our  Life  regiment, 
or  of  the  Guards  of  our  owne  person,  then  every  Colonell  ac- 
cording to  their  places  of  antiquity.  If  there  happen  to  be 
any  great  men  in  the  Army  of  our  subjects,  that  be  of  good 
understanding,  they  shall  cause  them  to  sit  next  these  officers, 
after  these  shall  sit  all  the  Colonells  of  strange  Nations,  every 
one  according  to  his  antiquity  of  service. 

"  144.  All  these  Judges,  both  of  higher  and  lower  Courts, 
shall  under  the  blue  skies  thus  sweare  before  Almighty  God, 
that  they  will  inviolably  keep  this  following  oath  unto  us : 

"I,  R.  W.,  doe  here  promise,  before  God,  upon  his  holy 
Gospell,  that  I  both  will  and  shall  judge  uprightly  in  all  things 


11 

according  to  the  Lawes  of  God,  of  our  Nation,  and  these  Arti- 
cles of  Warre,  so  farre  forth  as  it  pleaseth  Almighty  God  to 
give  me  understanding;  neither  will  I  for  favour  nor  for  hatred, 
for  good  will,  feare,  ill  will,  anger,  or  any  gift  or  bribe  whatso- 
ever, judge  wrongfully;  but  judge  him  free  that  ought  to  be 
free,  and  doom  him  guilty  that  I  finde  guilty;  as  the  Lord  of 
Heaven  and  Earth  shall  keep  my  soule  and  body  at  the  last 
day,  I  shall  hold  this  oath  truly. 

"  150.  Our  highest  Court  shall  be  carefull  also  to  heare  and 
judge  all  criminal  actions,  and  especially  cases  of  conspiracy  or 
treason  practised  or  plotted  against  us,  or  our  Generall,  either 
in  word  or  deed ;  secondly,  if  any  gives  out  dishonorable  speeches 
against  our  Majesty;  thirdly,  or  consulteth  with  the  enemy  to 
betray  our  Leaguer,  Castle,  Towne,  Souldiers  or  Fleet,  any  way 
whatsoever ;  fourthly,  if  there  be  any  partakers  of  such  treason 
or  treachery,  and  reveale  it  not ;  fifthly,  or  any  that  hath  held 
correspondency  and  intelligence  with  the  enemy;  sixthly,  if 
any  hath  a  spite  or  malice  against  us  or  our  country ;  seventhly, 
if  any  speake  disgracefully,  either  of  our  owne  or  our  GeneralFs 
person  or  indeavours;  eighthly,  or  that  intendeth  treachery 
against  our  Generall  or  his  Under  Officers,  or  that  speake th 
disgracefully  of  them. 

"151.  All  questions  in  like  manner  happening  betwixt  of- 
ficers and  their  souldiers,  if  they  suspect  our  lower  Court  to  be 
partiall  any  way,  then  may  they  appeale  unto  our  highest  Court, 
who  shall  decide  the  matter. 

"152.  If  a  Gentleman  or  any  Officer  be  summoned  to  ap- 
pear before  the  lower  Court  for  any  matter  of  importance  that 
may  touch  his  life  or  honour,  then  shall  the  same  be  decided  by 
our  higher  Court. 

"155.  Any  criminal  action  that  is  adjudged  in  our  lower 
Court,  we  command  that  the  sentence  be  presented  unto  our 
Generall ;  we  will  not  have  it  presently  put  in  execution,  untill 
he  gives  command  for  it  in  our  absence.  But  ourselves  being 
in  person  there  present,  will  first  take  notice  of  it,  and  dispose 
afterwards  of  it,  as  we  shall  think  expedient. 


12 

"156.  In  our  higher  Court,  the  Generall  parforce,  or  his 
Lieutenant,  shall  be  the  Plaintife,  who  shall  be  bound  to  fol- 
low the  complaint  dilligently,  to  the  end  he  may  the  better  in- 
fornie  our  Councellors  who  are  to  doe  justice ;  if  it  be  a  matter 
against  ourselves,  then  shall  our  owne  Advocate  defend  our 
action,  before  our  Court. 

"157.  The  same  power  the  Parforce  of  every  Ptegiment 
shall  have  in  our  lower  Court,  which  Parforce  shall  be  bound 
also  to  give  notice  of  every  breach  of  these  Articles  of  War  re, 
that  the  infringer  may  be  punished. 

"159.  Whensoever  our  highest  Court  is  to  sit,  it  shall  be 
two  hours  before  proclaimed  through  the  Leaguer,  that  there  is 
such  an  action  criminall  to  be  there  tried,  which  is  to  be  deci- 
ded under  the  blue  skies ;  but  if  it  be  an  action  civill,  then  may 
the  Court  be  holden  within  some  tent,  or  otherwhere ;  then  shall 
the  souldiers  come  together  about  the  place  where  the  Court  is 
to  be  holden,  no  man  presuming  to  come  too  neere  the  table 
where  the  Judges  are  to  sit ;  then  shall  our  Grenerall  come  fore- 
most of  all,  and  the  other  his  associates,  two  and  two  together, 
in  which  order,  they  all  coming  out  of  the  Generall's  tent,  shall 
set  themselves  down  in  the  Court,  in  the  order  before  appoint- 
ed ;  the  Secretarie's  place  shall  be  at  the  lower  end  of  the  table, 
where  he  shall  take  diligent  notice  in  writing  of  all  things  de- 
clared before  the  court ;  then  shall  the  Grenerall  Parforce  begin 
to  open  his  complaint  before  them,  and  the  contrary  party  shall 
have  liberty  to  answer  for  himselfe,  untill  the  Judges  be  thor- 
oughly informed  of  the  truth  of  all  things. 

"161.  The  matter  being  thoroughly  opened  and  considered 
upon,  and  our  whole  Court  agreeing  in  one  opinion,  they  shall 
command  their  sentence  concerning  the  same  action,  to  be  pub- 
likely  there  read  in  the  hearing  of  all  men,  always  reserving  his 
Majestie's  further  will  and  pleasure. 

"162.  In  our  lower  Court  they  shall  also  hold  the  same 
order;  saving  that  the  particular  Court  of  every  Regiment 
shall  be  holden  in  their  owne  quarters. 

"163.  In  this  lower  Court  they  shall  always  observe  this 
order,  namely :  that  the  President  sits  at  the  lords'  end  alone, 


13 

the  Captains,  Lieutenants  and  Ensi^nes  on  either  side  ;  so  many 
inferiour  officers  also  upon  each  side,  that  so  they  may  the  better 
reason  upon  the  matter  amongst  themselves;  last  of  all  shall 
the  Clerk  or  Secretary  sit  at  the  lower  end  of  the  table ;  the 
one  party  standing  upon  one  hand,  the  other  upon  the  other.'' 
There  is  a  striking  resemblance  between  the  system  thus  es- 
tablished and  that  which  soon  afterwards  made  its  appearance 
in  England.  But  the  resemblance  is  not  limited  to  the  method 
of  administering  military  justice;  it  is  evident  also  in  the  penal 
provisions.  Considering,  therefore,  their  chronological  relations, 
there  is  good  reason  to  believe  that  the  English  codes  of  the 
Seventeenth  Century  were  the  offspring  of  the  Swedish  code. 
But  the  latter  does  not  present  the  earliest  instance  of  this  form 
of  military  trial.  Councils  of  war  had  for  many  centuries  al- 
ready been  resorted  to  by  different  European  governments. 
Under  the  Emperor  Charles  V.  we  find  this  form  of  military 
trial  regulated  with  great  detail,  and,  indeed,  cumbrous  formali- 
ty. The  commanders  of  his  regiments  possessed  the  power  of 
administering  certain  disciplinary  punishments  without  resorting 
to  military  tribunals.  Offences  against  the  articles  of  war,  and 
doubtful  cases  were,  however,  referred  to  a  court  which  the 
regimental  commander,  the  judge  advocate,  or  other  officer  de- 
puted by  the  regimental  commander,  was  authorized  to  convene, 
and  over  which  such  officer  presided.  The  court  consisted  of 
twelve,  or,  in  important  cases,  twenty-four,  fit  persons — officers 
and  soldiers — selected  from  the  regiment.  These  were  the  as- 
sesors.  They  were  judges  of  the  law  and  the  fact,  deciding  on 
the  guilt  and  punishment,  and  giving  their  votes  separately. 

On  the  opening  of  the  court  the  judge  advocate,  or  other  pre- 
siding judge,  administered  the  following  oath  to  the  members : 
"  We,  the  Judges,  vow  and  swear  by  God  and  his  Holy  Grospel 
that  we  will  help  rightly  to  judge  and  determine  the  present- 
complaints  and  answers,  accusations  and  defence,  according  to 
our  best  understanding  and  judgment,  for  the  poor  as  the  rich, 
and  for  the  rich  as  the  poor,  without  regard  to  person ;  accord- 
ing also  to  the  Divine  and  imperial  law,  and  particularly  accord- 
ing to  the  Articles  of  War  and  their  published  commands  and 


14 

prohibitions  \  and  this  we  will  do  neither  for  favor,  friendship, 
or  other  tie,  nor  for  fear,  enmity,  hate,  envy  or  ill-will,  much  less 
for  any  present  or  bribe ;  and  least  of  all  will  we  acquit  the  guilty, 
or  condemn  the  innocent ;  but  will  judge  in  such  manner  that 
we  may  all  be  answerable  to  the  All-just,  Great  and  Almighty 
God,  before  his  strict  tribunal  and  to  our  (name  of  the  sove- 
reign) ;  so  help  us  God  through  Jesus  Christ  his  Son." 

After  the  oath  had  been  taken,  which  was  done  with  uplifted 
hands,  and  by  repeating  the  words,  a  number  of  formalities  fol- 
lowed, amongst  them  the  formal  questioning  of  the  court  by  the 
judge  advocate,  as  to  the  appropriateness  of  the  time,  and  the 
fitness  of  the  members.  The  accused  was  then  regularly  ar- 
raigned on  a  written  complaint,  to  which  he  was  allowed  to  plead 
in  detail.  He  was  also  allowed  to  produce  evidence  in  defence 
and  to  have  counsel,  and  might  even  select  his  counsel  from 
amongst  the  members  of  the  court.  However  strict  the  code 
may  have  been  which  these  courts  administered,  we  find  the  ac- 
cused here  hedged  around  with  many  of  the  most  important 
safe-guards  which  protect  him  before  our  military  courts  to-day. 

Going  back  to  the  time  of  the  Carlovingian  dynasty,  we  meet 
with  a  system  similar  in  some  respects,  but  with  one  marked 
point  of  difference.  That  which  has  just  been  considered  had 
for  its  object  the  administration  of  the  law  military  only.  Crimes 
of  a  civil  nature  did  not  fall  within  its  jurisdiction.  This  prin- 
ciple— the  severance  of  the  civil  and  military  power — had  al- 
ready been  observed  by  the  Romans.  It  did  not,  however, 
enter  into  the  Carlovingian  system.  Under  the  monarchs  of 
this  line  the  territorial  lord  presided  over  the  courts  of  justice 
within  his  jurisdiction.  In  time  of  war  he  became  military  com- 
mander and  his  subjects  became  his  soldiers.  He  still  exercised 
civil  jurisdiction  over  them,  but,  in  consequence  of  the  military 
relation,  a  military  jurisdiction  also.  Exercised  by  the  same  au- 
thority, and  administered  through  the  same  machinery,  the  two 
were,  however,  blended  together. 

Trials  were  conducted  publicly,  orally,  and  with  a  prosecutor ; 
the  courts  were  presided  over  by  the  suzerain,  or  his  representa. 
tives,  to  whom  were  joined  at  first  seven,  and  afterwards  (by 


15 

an  order  of  Lewis  le  Debonnaire  in  819)  twelve  judges — Sca- 
bini.  The  duties  of  these  judges  corresponded  with  those  of 
the  members  of  the  modern  court-martial — they  determined  the 
question  of  guilt  or  innocence,  and,  in  case  of  conviction,  awarded 
the  punishment. 

At  a  later  period  the  administration  of  civil  and  mili- 
tary justice  was  separated,  but  the  machinery,  which  had  been 
in  use  when  the  two  jurisdictions  centred  in  the  same  authority, 
was  retained  for  the  military  court,  and  out  of  it  grew  the  better 
defined  and  more  perfect  systems  which  have  been  mentioned. 
So  that,  the  trial  by  council  of  war  appears  to  be  an  out-growth 
of  the  judicial  system  of  these  early  days — an  application  to  the 
law  military  of  the  principles  which  regulated  the  ordinary  trial. 

The  composition  of  courts-martial  on  the  European  conti- 
nent during  the  16th  and  17th  centuries  varied  somewhat  with 
time  and  place.  The  number  of  members  was  generally  either 
eleven  or  thirteen.  In  the  army  of  the  German  Empire  the 
judge  advocate  had  a  vote;  in  other  armies  he  was  simply  pro- 
secutor. It  was  no  uncommon  thing  for  soldiers,  below  the  de- 
gree of  officer,  to  be  eligible  as  members.  They  were  so — as 
already  stated — by  the  codes  of  Charles  V.,  and  Gustavus 
Adolphus.  In  Schleswig-Holstein  courts-martial  were  composed 
of  the  president,  two  captains,  two  lieutenants,,  two  ensigns,  two 
sergeants,  two  corporals,  and  two  of  the  same  rank  with  the  ac- 
cused. In  England  there  existed  at  one  time  a  court  known  as 
the  "  Company  Court-Martial"  which  was  assembled  by  the 
captain  and  consisted  of  the  privates  of  the  company.  The 
court  took  jurisdiction  in  such  matters  as  stealing  from  a  com- 
rade, and  awarded  corporal  punishment.  It  never,  however,  had 
any  legal  existence,  and  on  that  account  was  abandoned. 

There  are  thus  many  features  possessed  in  common  by  the 
English  and  the  continental  systems  which,  examined  in  conne- 
ction with  the  circumstances  under  which  the  English  code  was 
adopted,  seem  to  prove  the  identity  of  their  origin.  The  trial 
by  council  of  war — the  court-martial — cannot,  therefore,  it  is  be- 
lieved, be  regarded  as  a  purely  English,  or  as  an  originally  Eng- 
lish, institution.  On  the  contrary,  it  appears  to  have  been 


16 

transplanted  to  England,  there  to  have  found  a  congenial  atmo- 
sphere, and  to  have  been  at  once  adopted,  and  ever  since  re- 
tained, as  far  better  adapted  to  its  ends  than  any  other  system 
that  could  be  devised  ;  whilst,  on  the  other  hand,  on  the  conti- 
nent, where  it  originated,  it  gradually  gave  way  to  the  inquisi- 
torial method  of  proceeding. 


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LD  21-100m-12,'46(A2012sl6)4120 


I 


L-iaber,    Gu: 

IVJJLCMbt-P*-* 

.do   N. 

UBS  50 
L5 

Observat: 

r»Y*i  /rn  n     of*    " 

ions,  on  the 
^he  "brial  by 

council   of 

war 

/ 

. 

M184557 


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